FILED
NOT FOR PUBLICATION OCT 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ELI GONZALO ZEGARRA No. 08-73227
CARDENAS,
Agency No. A029-243-128
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Eli Gonzalo Zegarra Cardenas, a native and citizen of Peru, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reconsider. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion the denial of motions to reconsider or reopen, Cano-Merida v. INS, 311
F.3d 960, 964 (9th Cir. 2002), we deny the petition for review.
The BIA did not abuse its discretion in denying Zegarra Cardenas’ motion to
reconsider because the motion failed to identify any error of law or fact in the
BIA’s March 21, 2008, order denying his motion to reopen. See 8 C.F.R.
§ 1003.2(b)(1); see also Socop-Gonzales v. INS, 272 F.3d 1176, 1180 n.2 (9th Cir.
2001) (en banc) (purpose of a motion to reconsider is to demonstrate that the
agency erred as a matter of law or fact).
To the extent the motion sought reopening, the BIA acted within its
discretion in denying it as untimely and number-barred because the successive
motion was filed eleven years after the BIA’s March 17, 1997, order dismissing his
appeal, see 8 C.F.R. § 1003.2(c)(2), and the evidence submitted with the motion
failed to establish Zegarra Cardenas acted with the due diligence required to
warrant tolling of the time and number bars, see Iturribarria v. INS, 321 F.3d 889,
897 (9th Cir. 2003) (equitable tolling is available to petitioner who is prevented
from filing due to deception, fraud or error, and who exercises due diligence in
discovering such circumstances).
Zegarra Cardenas’ remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.
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